on appeal from the united states district court · indianapolis, in 46204 (317) 924-3005...
TRANSCRIPT
No. 18-16663
IN THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CITY OF OAKLAND, ET AL.,
Plaintiffs-Appellants,
v.
BP P.L.C., ET AL.,
Defendants-Appellees.
On Appeal from the United States District Court
Northern District of California
Nos. 3:17-cv-06011-WHA, 3:17-cv-06012-WHA
Hon. William H. Alsup
BRIEF OF INDIANA AND 19 OTHER STATES AS
AMICI CURIAE IN SUPPORT OF DEFENDANTS-
APPELLEES’ PETITION FOR PANEL REHEARING
AND/OR REHEARING EN BANC
Office of the Attorney General
302 W. Washington Street
Indianapolis, IN 46204
(317) 924-3005
*Counsel of Record
CURTIS T. HILL, JR.
Attorney General of Indiana
THOMAS M. FISHER*
Solicitor General
KIAN J. HUDSON
Deputy Solicitor General
JULIA C. PAYNE
Deputy Attorneys General
Counsel for Amici States
Addition counsel listed with signature block
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................. ii
INTRODUCTION AND INTEREST OF THE AMICI STATES ......... 1
ARGUMENT ........................................................................................ 3
I. The Cities’ Claims Violate the Commerce Clause ........................ 3
II. The Cities’ Claims Raise Non-Justiciable Political Questions ..... 9
III. The Cities’ Claims Jeopardize Our National System of
Cooperative Federalism .............................................................. 15
CONCLUSION ................................................................................... 23
ADDITIONAL COUNSEL ................................................................. 24
CERTIFICATE OF COMPLIANCE ................................................... 26
CERTIFICATE OF SERVICE ............................................................ 27
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TABLE OF AUTHORITIES
CASES
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ........................................................................... 7, 8
Antolok v. United States,
873 F.2d 369 (D.C. Cir. 1989) ............................................................. 12
Arizona State Legislature v. Arizona Indep. Redistricting
Comm’n,
135 S. Ct. 2652 (2015) ........................................................................... 4
Baker v. Carr,
369 U.S. 186 (1962) ................................................................. 10, 13, 22
California v. Gen. Motors Corp.,
No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17,
2007) .................................................................................................... 11
Carmichael v. Kellogg, Brown & Root Servs., Inc.,
572 F.3d 1271 (11th Cir. 2009) ........................................................... 12
Chaser Shipping Corp. v. United States,
649 F. Supp. 736 (S.D.N.Y. 1986) ....................................................... 12
City of New York v. BP p.l.c.,
325 F. Supp. 3d 466 (S.D.N.Y. 2018) .................................................. 10
The Florida Star v. B.J.F.,
491 U.S. 524 (1989) ............................................................................... 5
Healy v. Beer Institute,
491 U.S. 324 (1989) ................................................................... 5, 6, 7, 8
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) ................................................................................. 5
Native Vill. of Kivalina v. ExxonMobil Corp.,
663 F. Supp 2d 863 (N.D. Cal. 2009) ...................................... 10, 11, 13
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CASES [CONT’D]
Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of
Petrol.,
577 F.2d 1196 (5th Cir. 1978) ............................................................. 12
West v. Broderick & Bascom Rope Co.,
197 N.W.2d 202 (Iowa 1972) ................................................................. 5
STATUTES
42 U.S.C. § 7401 et seq. ........................................................................... 16
42 U.S.C. § 6212a .................................................................................... 21
Cal. Pub. Res. Code § 3004 ...................................................................... 21
Cal. Pub. Res. Code § 3106 ...................................................................... 21
Tex. Nat. Res. Code § 34.052 ................................................................... 21
Tex. Nat. Res. Code § 34.055 ................................................................... 21
Tex. Nat. Res. Code § 131.002 ................................................................. 21
OTHER AUTHORITIES
Jessica Ranucci, Reviving the Clean Air Act’s Requirement
That States Adequately Fund and Staff Clean Air
Programs, 40 Harv. Envtl. L. Rev. 351 (2016) ................................... 16
Michael Weisslitz, Rethinking the Equitable Principle of
Common but Differentiated Responsibility: Differential
Versus Absolute Norms of Compliance and Contribution in
the Global Climate Change Context, 13 Colo. J. Int’l Envtl.
L. & Pol’y 473 (2002) ........................................................................... 19
Paris Agreement – Status of Ratification, U. N. Climate
Change, https://unfccc.int/process/the-paris-
agreement/status-of-ratification ......................................................... 19
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OTHER AUTHORITIES [CONT’D]
Paris Agreement, art. 3 (Dec. 12, 2015),
https://unfccc.int/files/essential_background/convention/
application/pdf/english_paris_agreement.pdf .............................. 19, 20
Pew Center on Global Climate Change,
https://www.c2es.org/content/state-climate-policy/ ...................... 17, 18
Phillip J. Weiser, Towards a Constitutional Architecture for
Cooperative Federalism, 79 N.C. L. Rev. 663 (2001) ......................... 16
President Trump Announces U.S. Withdrawal from the Paris
Climate Accord, dated June 1, 2017,
https://www.whitehouse.gov/articles/president-trump-
announces-u-s-withdrawal-paris-climate-accord/ .............................. 20
Status of Ratification of the Convention, U.N. Climate
Change, https://unfccc.int/process/the-convention/what-is-
the-convention/status-of-ratification-of-the-convention .................... 18
Status of Ratification of the Kyoto Protocol, U.N. Climate
Change, https://unfccc.int/process/the-kyoto-
protocol/status-of-ratification ............................................................. 19
U.S. Energy Info. Admin., Regional Greenhouse Gas
Initiative auction prices are the lowest since 2014
(May 31, 2017), https://www.eia.gov/todayinenergy/
detail.php?id=31432............................................................................ 17
World Resources Inst., Midwest Coal States Endorse
Aggressive Regional Climate Action (Apr. 2009),
http://pdf.wri.org/factsheets/factsheet_coal_
states_action.pdf ................................................................................. 17
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INTRODUCTION AND INTEREST OF THE AMICI STATES
Amici curiae, States of Indiana, Alabama, Alaska, Arkansas, Geor-
gia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska,
North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas,
Utah, West Virginia, and Wyoming, respectfully submit this brief in sup-
port of the Petition for Panel Rehearing and/or Rehearing En Banc.
This case presents an issue of extraordinary importance to the
Amici States. The Cities of San Francisco and Oakland seek judicial res-
olution of one of the most complicated and contentious issues confronting
policymakers today—global climate change. The Cities contend their in-
juries are caused by climate change that is in turn the result of green-
house gases emitted by countless entities all over the globe. Yet here they
take aim at just five fossil fuel companies: They argue these companies,
by producing fossil fuels and promoting their use, have broken the law—
but not law enacted by a legislature, promulgated by a government
agency, or negotiated by a President. Rather, the law the Cities invoke is
the common law. They claim the production and promotion of fossil fuels
constitutes a “public nuisance” such that courts may impose on this small
group of defendants the costs of remedying all the Cities’ alleged injuries.
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The Cities’ claims threaten to unconstitutionally supplant States’
own regulatory decisions in this area, usurp the political branches’ poli-
cymaking authority, and undermine important cooperative federalism
programs. This case thus presents issues of enormous importance and
deserves this Court’s consideration on rehearing en banc.
At bottom, the Cities’ argument is that the common law of public
nuisance authorizes courts to assign responsibility for remedying climate
change as they see fit. Judicial intervention here, however, would violate
the Commerce Clause’s extraterritorial doctrine by effectively allowing
the Cities to supersede States’ own authority over environmental regula-
tion. The Cities’ claims would also force courts to decide the proper bal-
ance of regulatory and commercial activity—a political question that can-
not be resolved by judicial decree—and would trample Congress’s care-
fully calibrated process of cooperative federalism.
Accordingly, the Amici States have a strong interest in this case—
as sovereigns responsible for environmental regulation, as participants
in cooperative federalism programs, and as potential defendants. In light
of the important issues this case presents, the Court should grant the
petition for rehearing en banc.
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ARGUMENT
I. The Cities’ Claims Violate the Commerce Clause
1. The Cities’ claims ask for nothing less than judicial creation of a
global regulatory regime governing the production, promotion, sale, and
use of fossil fuels. The Cities characterize their claims as seeking “an eq-
uitable abatement remedy” on the theory that “each Defendant wrong-
fully promoted the use of its fossil-fuel products” while it knew “devastat-
ing impacts . . . would result from the expanded use of” fossil fuels—im-
pacts the Cities allege “begin[] with the extraction of fossil fuels and con-
tinu[e] with their production, sale, and combustion.” Appellant Br. 32
(emphasis added). The Cities contend the five Defendants should bear
the entire cost of redressing all of their alleged injuries.
The Cities thus acknowledge the obvious—that their alleged inju-
ries occur only as the culmination of incalculable actions taken all around
the world. The Cities’ claims would require courts to determine, out of the
innumerable actors taking part in this worldwide series of actions, who
should bear what costs to address climate change’s consequences.
The Cities’ claims thus seek to regulate conduct that occurs outside
California, and even outside the United States. If allowed to proceed,
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these claims would effectively usurp States’ own authority to respond to
global climate change in the manner they consider most appropriate.
Throughout American history, States have functioned as laborato-
ries for democracy, utilizing their regulatory authority to address im-
portant concerns, like climate change, in a method tailored to their State-
specific values and State-specific needs. See Arizona State Legislature v.
Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2673 (2015) (“[The
Supreme] Court has ‘long recognized the role of the States as laboratories
for devising solutions to difficult legal problems.’” (quoting Oregon v. Ice,
555 U.S. 160, 171 (2009)). And to protect States’ sovereignty and inde-
pendent regulatory authority from undue interference, the extraterrito-
riality doctrine of the Commerce Clause bars States and litigants from
regulating conduct that occurs in other States.
The extraterritoriality doctrine protects each State’s independent
policymaking authority by authorizing federal courts to intervene when
one State attempts to regulate out-of-state conduct and thereby impose
its public policy choices on other, co-equal sovereigns. In this way, the
Commerce Clause not only functions as a restraint on laws adopted by
state legislatures, but also as a limit to state common law claims that
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apply to or directly control out-of-state conduct. See West v. Broderick &
Bascom Rope Co., 197 N.W.2d 202, 214 (Iowa 1972); cf. The Florida Star
v. B.J.F., 491 U.S. 524, 532 (1989); Hustler Magazine, Inc. v. Falwell, 485
U.S. 46, 57 (1988) (both holding that the First Amendment applies to
common law restrictions as well as statutory restrictions).
Accordingly, the Commerce Clause at a minimum precludes (1) ap-
plication of tort claims to “commerce that takes place wholly outside of
the State’s borders, whether or not the commerce has effects within the
State,” and (2) tort claims that have the “practical effect” of “directly con-
trol[ling] commerce occurring wholly outside the boundaries of a State.”
Healy v. Beer Inst., Inc., 491 U.S. 324, 335–37 (1989) (quoting Edgar v.
MITE Corp., 457 U.S. 624, 642–43 (1982) (plurality opinion)).
2. As noted, here the Cities are attempting to hold a handful of fossil
fuel companies liable for wholly out-of-state conduct, including conduct
undertaken by entirely separate entities. The Cities are seeking abate-
ment in the amount of all of the harm they have allegedly suffered be-
cause of global climate change, even though it is certain that the defend-
ant companies’ conduct—much less their within-California conduct—is
not responsible for all of this alleged harm.
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And even if the Cities restricted their theory only to Defendants’ in-
state conduct, the “practical effect” of their claims would be to regulate
global conduct “occurring wholly outside the boundaries of” California.
Healy, 491 U.S. at 336. By attempting to regulate conduct occurring out-
side California’s boundaries, the Cities’ claims impermissibly intrude on
the authority of other States to regulate climate change in a State-spe-
cific manner: A State that wishes to encourage fossil fuel production by
adopting a light regulatory touch would find its efforts obstructed by the
Cities’ extraterritorial regulation-by-litigation. This intrusion on other
States’ sovereignty violates the Commerce Clause.
Indeed, by requesting a remedy that requires Defendants to pay to
abate all of the effects of climate change, the Cities seek to hold Defend-
ants liable for damages caused by global conduct, not Defendants’ in-
state conduct. And even accepting, arguendo, the Cities’ theory that lia-
bility can be extended up the causal chain to the expanded production,
promotion, and sale of fossil fuel products, these upstream activities oc-
cur all around the world. The Cities do not endeavor to limit their theory
to just those activities attributable to Defendants’ conduct at all, much
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less their in-state conduct. This attempt to regulate extraterritorial com-
merce is an unconstitutional violation of the Commerce Clause. Healy,
491 U.S. at 335–37.
Furthermore, the Cities concede that the harms they allege “are
triggered by a cumulative sequence of events, beginning with the extrac-
tion of fossil fuels and continuing with their production, sale, and com-
bustion,” but they make no attempt to differentiate between harm de-
rived from Defendants’ in-state conduct and harm derived from other
conduct by other actors or conduct occurring elsewhere around the world.
App. Br. 32–33. In fact, the Cities make no attempt to even quantify De-
fendants’ in-state contribution to climate change, instead vaguely claim-
ing that the Defendants wrongfully promoted the expanded use of fossil-
fuel products, which led to climate change, which in turn caused devas-
tating impact on coastal communities that should be remediated by De-
fendants. Id.
The Cities have framed their allegations in terms of Defendants’
upstream activities—producing, promoting, and selling fossil fuels—in
order to circumvent the reach of American Electric Power Co. v. Connect-
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icut, where the Supreme Court rejected similar common-law public-nui-
sance claims attempting to hold fossil-fuel emitters responsible for cli-
mate change. 564 U.S. 410, 424 (2011). But this framing runs headlong
into the Cities’ concession that much of the conduct causing their injuries
occurred outside California, and that “some of the conduct and emissions
contributing to the nuisance arise outside the United States.” App. Br. 45
(emphasis added; internal quotation marks and citation omitted). That
the Cities’ alleged harms occurred in California does not change the fact
that their attempt to regulate that extraterritorial conduct violates the
Commerce Clause.
The Cities fail to show any emissions attributable to Defendants’
in-state conduct, yet insist that Defendants’ expanded production, pro-
motion, and sale of fossil fuels in California is sufficient to hold Defend-
ants liable for the entire cost of climate change abatement. The Com-
merce Clause strictly forbids such regulatory overreach: The Cities’ reg-
ulation of this out-of-state commercial activity is thus wholly unconstitu-
tional. Healy, 491 U.S. at 335–37.
Even if the Cities limited their requested relief to the fraction of
damages allegedly caused by in-state production, promotion, and sale of
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fossil fuels, their claims would still violate the Commerce Clause, for the
alleged harms are only caused when in-state conduct combines with
wholly out-of-state conduct. After all, the global climate change that al-
legedly caused these harms is the product of global emissions, not merely
emissions from one State. App. Br. 32–33, 45. Under the Cities’ theory,
out-of-state emissions are the direct cause of their harms; any in-state
commerce, such as Defendants’ production, promotion, and sale of fossil
fuel products within California, is thus insufficient to cause the totality
of harms alleged by the Cities. The Cities’ attempt to regulate out-of-state
emissions by imposing abatement requirements on fossil-fuel producers
violates the Commerce Clause and usurps individual States’ policymak-
ing authority—including States’ authority to establish independent envi-
ronmental standards generally and to address climate change specifically
in the manner they think is most appropriate. This Court should not al-
low these claims to proceed.
II. The Cities’ Claims Raise Non-Justiciable Political Questions
The Cities claims would not only unconstitutionally regulate out-
of-state conduct, but would also require courts to answer immensely com-
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plicated political questions that “lack . . . satisfactory criteria for a judi-
cial determination.” Baker v. Carr, 369 U.S. 186, 210 (1962). The Cities’
claims ultimately sound in public policy, not law. They are therefore in-
appropriate for judicial resolution.
1. Longstanding Supreme Court precedent establishes that a
claim presents non-justiciable political questions if its adjudication would
not be governed by “judicially discoverable and manageable standards”
or would require “an initial policy determination of a kind clearly for non-
judicial discretion.” Baker, 369 U.S. at 217.
The political question doctrine has repeatedly foreclosed attempts
to regulate global climate change via public nuisance lawsuits. See, e.g.,
City of New York v. BP P.L.C., 325 F. Supp. 3d 466, 475–76 (S.D.N.Y.
2018), appeal pending, No. 18-02188 (docketed Jul. 26, 2018) (dismissing
virtually identical claims against the same five companies as the case at
hand and recognizing that “an action for injuries from foreign greenhouse
gas emissions in federal court would severely infringe upon the foreign-
policy decisions that are squarely within the purview of the political
branches of the U.S. Government.”); Native Vill. of Kivalina v. ExxonMo-
bil Corp., 663 F. Supp 2d 863, 877 (N.D. Cal. 2009), aff’d, 696 F.3d 849
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(9th Cir. 2012) (observing that “the allocation of fault—and cost—of
global warming is a matter appropriately left for determination by the
executive or legislative branch.”); California v. Gen. Motors Corp., No.
C06-05755 MJJ, 2007 WL 2726871 at *6, *16 (N.D. Cal. Sept. 17, 2007)
(dismissing public nuisance claims against automakers, recognizing “the
complexity of the initial global warming policy determinations that must
be made by the elected branches prior to the proper adjudication of Plain-
tiff’s federal common law nuisance claim.”).
These cases demonstrate precisely why the amici who supported
the Cities at the panel stage were wrong to claim—rather paradoxically—
that “widespread harm,” Cal. State Ass’n of Counties 8, can only be pre-
vented by “local solutions,” Nat’l League of Cities Br. 13. The complexity
of global climate change and the accompanying worldwide allocation of
fault requires national or international action, not the ad hoc interven-
tion of individual courts acting at the behest of a handful of local govern-
ments. See Kivalina, 663 F. Supp. 2d at 877; Gen. Motors Corp., 2007 WL
2726871 at *6, *16.
More broadly, several Circuits and other federal courts have recog-
nized that political questions may arise in cases that nominally involve
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tort claims. See, e.g., Occidental of Umm al Qaywayn, Inc. v. A Certain
Cargo of Petrol., 577 F.2d 1196, 1203 (5th Cir. 1978) (concluding tortious
conversion claims were barred by the political question doctrine); Carmi-
chael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,1296 (11th Cir.
2009) (finding tort claims arising from automobile accident were barred
by the political question doctrine); Antolok v. United States, 873 F.2d 369,
383–84 (D.C. Cir. 1989) (noting that “[i]t is the political nature of the
[issue], not the tort nature of the individual claims, that bars our review
and in which the Judiciary has no expertise.”); Chaser Shipping Corp. v.
United States, 649 F. Supp. 736, 738 (S.D.N.Y. 1986), aff’d, 819 F.2d 1129
(2d Cir. 1987) (“Even though awarding tort damages is a traditional func-
tion for the judiciary, it is apparent that there is a clear lack of judicially
discoverable and manageable standards for arriving at such an award.”).
Indeed, even the Cities’ amici recognize the political nature of the
claims at issue here. One such amicus brief, for example, is principally
devoted to discussing the political background and history of efforts to
address climate change, noting significant changes over the course of the
past three presidencies. U.S. Senators Br. 8–30. The difficult policy ques-
tions surrounding this issue, and variety of answers these questions have
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prompted, only underscores the fact that global climate change can be
addressed only by political, and not judicial, action.
Under these circumstances, it is critical to grasp the limits of the
judicial role. Adjudicating the Cities’ claims would require a complex in-
itial policy determination more appropriately addressed by other
branches of government. The judiciary may properly allocate fault (and
costs) only after the political branches initially determine standards to
guide those allocations. Judges are simply not well positioned to discern,
as a matter of common law, the proper regulatory balance between the
costs and benefits involved with fossil fuels. Thus, while the Cities’ claims
may be styled as torts, substantively, they are requests for judicial reso-
lution of political problems. They are therefore not justiciable.
2. Beyond being inherently political, the Cities’ claims also lack
“judicially discoverable and manageable standards.” Baker, 369 U.S. at
217; see also Kivalina, 663 F. Supp. 2d at 874–77. No common law nui-
sance standards exist that could limit judicial policymaking in the course
of deciding whether the prospect of global climate change makes it “un-
reasonable” for energy companies to produce and promote fossil fuels.
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To determine liability, any court considering the Cities’ claims
would need to determine that the Cities’ have a “right” to the climate—
in all of its infinite variations—as it stood at some unspecified time in the
past, then find not only that this idealized climate has changed, but that
Defendants caused that change through “unreasonable” action that de-
prived the Cities’ of their right to the idealized climate. And, as a remedy,
the court would need to impose a regulatory scheme—balancing the grav-
ity of the Cities’ alleged harms against the utility of each Defendant’s
conduct—on fossil fuel emissions that are already subject to comprehen-
sive state and federal regulation. Doing so would force the court to make
decisions without recourse to any principled, judicially administrable
standards.
Courts should not be in the business of setting nationwide energy
and environmental policy. They face insuperable practical hurdles in
terms of gathering information about complex public policy issues and
predicting long-term consequences that might flow from their decisions.
And most critically, courts lack political accountability for decisions
based on something other than neutral legal principles.
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III. The Cities’ Claims Jeopardize Our National System of
Cooperative Federalism
Finally, by attempting to force Defendants to pay to abate all inju-
ries the Cities allegedly suffer as a result of global climate change, the
Cities seek to inject their political and policy preferences into the national
framework regulating the production, promotion, and use of energy. Con-
gress, however, has already addressed this issue, and has leveraged and
augmented States’ preexisting regulatory authority by way of the Clean
Air Act—a program of cooperative federalism designed to permit each
State to achieve its optimal balance of regulation and commercial activ-
ity. The relief the Cities seek would seriously undermine this national
regulatory system, a system in which all States play a critical policymak-
ing role. The threat the Cities’ claims pose to America’s system of cooper-
ative federalism underscores both the political nature of their claims and
the importance of this Court addressing—and dismissing—those claims.
1. Cooperative federalism—where the federal government cre-
ates broad standards to be tailored and implemented by States on the
basis of local conditions—allows States significant policymaking discre-
tion and, as a consequence, encourages multiple levels of political debate
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and negotiation. See Phillip J. Weiser, Towards a Constitutional Archi-
tecture for Cooperative Federalism, 79 N.C. L. Rev. 663, 668–73 (2001).
The Clean Air Act, 42 U.S.C. § 7401 et seq., is a prime example of
cooperative federalism in action: While it requires the federal govern-
ment to establish health-based air-quality standards, it assigns States a
significant role in tailoring and enforcing those standards. The multi-
level process for crafting state-specific solutions necessarily means that
no two state plans are identical. See, e.g., Jessica Ranucci, Reviving the
Clean Air Act’s Requirement That States Adequately Fund and Staff
Clean Air Programs, 40 Harv. Envtl. L. Rev. 351, 364–65 (2016).
In adopting the Clean Air Act, Congress recognized that the process
of balancing health and environmental considerations against the value
of energy production is an inherently political undertaking that must be
responsive to local conditions. This arrangement could not be further
from the judicially created, one-size-fits-all solution the Cities are asking
the Court to impose.
2. The political negotiations necessary for accountable regula-
tory action extend to regional compacts, where groups of States, with the
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blessing of Congress, can add yet more requirements to address a broad
spectrum of issues related to global climate change.
These compacts vary widely. For example, the Midwestern Green-
house Gas Reduction Accord (MGGRA) and the Regional Greenhouse Gas
Initiative (RGGI) shared a “cap and trade” methodology and combined
technology investments and offsets to promote regional economic growth
while pursuing environmental goals. But each compact differed based on
regional conditions—both economic and ecologic—and extensive political
negotiation. Compare World Resources Inst., Midwest Coal States En-
dorse Aggressive Regional Climate Action (Apr. 2009),
http://pdf.wri.org/factsheets/factsheet_coal_states_action.pdf, with U.S.
Energy Info. Admin., Regional Greenhouse Gas Initiative Auction Prices
Are the Lowest Since 2014 (May 31, 2017), https://www.eia.gov/to-
dayinenergy/detail.php?id=31432.
In addition, at least 21 States have adopted regulations addressing
sources of greenhouse gases in ways consistent with local priorities. See
Pew Center on Global Climate Change, https://www.c2es.org/con-
tent/state-climate-policy/ (providing dynamic maps of state and regional
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activities in the United States). Each State’s policy reflects a State-spe-
cific balancing of the costs and benefits of climate change regulation.
Through the cooperative federalism model, States’ political deci-
sion-making bodies secure environmental benefits for their citizens with-
out sacrificing their citizens’ livelihoods. Each State does so in a different
fashion—a natural result of the social, political, environmental, and eco-
nomic diversity among the States.
3. The international nature of global climate change has also
generated a variety of treaties and multilateral initiatives. These actions
have similarly balanced a variety of economic, social, geographic, and po-
litical factors while emphasizing multiparty action, rather than the uni-
lateral directives the Cities have sought from the courts.
The United Nations, for example, has responded to climate change
concerns by creating the United Nations Framework Convention on Cli-
mate Change (UNFCCC). See Status of Ratification of the Convention,
U.N. Climate Change, https://unfccc.int/process/the-convention/what-is-
the-convention/status-of-ratification-of-the-convention (providing link to
list of 197 signatories). The UNFCCC’s signatories meet regularly and
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have created several ancillary agreements which typically require bind-
ing commitments from members. One such agreement, the Kyoto Proto-
col, required reductions from “developed nations” but not “developing na-
tions,” and was signed by President Clinton. The United States later re-
fused to ratify the treaty because President Bush believed it would harm
the United States’ economy. See Status of Ratification of the Kyoto Proto-
col, U.N. Climate Change, https://unfccc.int/process/the-kyoto-proto-
col/status-of-ratification; Michael Weisslitz, Rethinking the Equitable
Principle of Common but Differentiated Responsibility: Differential Ver-
sus Absolute Norms of Compliance and Contribution in the Global Cli-
mate Change Context, 13 Colo. J. Int’l Envtl. L. & Pol’y 473, 507–08
(2002).
More recently, under President Obama’s administration, the
United States entered into the Paris Climate Change Agreement, which
went in to force on November 4, 2016 and committed signatories to adopt-
ing a Nationally Determined Contribution and to reporting emissions
and corresponding efforts to reduce such emissions. See Paris Agreement
– Status of Ratification, U.N. Climate Change, https://unfccc.int/pro-
cess/the-paris-agreement/status-of-ratification; Paris Agreement, art. 3,
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(Dec. 12, 2015), https://unfccc.int/files/essential_background/conven-
tion/application/pdf/english_paris_agreement.pdf. But on June 1, 2017,
President Trump changed course and announced that the United States
would withdraw from the agreement. See President Trump Announces
U.S. Withdrawal from the Paris Climate Accord (Jun. 1, 2017),
https://www.whitehouse.gov/articles/president-trump-announces-u-s-
withdrawal-paris-climate-accord/.
Thus, the past two decades have seen four presidential administra-
tions with widely divergent perspectives on the proper foreign policy to
address climate change and global greenhouse gas emissions. These ad-
ministrations’ shifting positions further demonstrate the political nature
of environmental regulation in general and climate change in particular.
And they highlight the reasons why such decisions are properly the prov-
ince of the political branches, not unaccountable courts.
4. Consideration of the Cities’ claims and the concomitant judi-
cial intervention into the political debate over global climate change
would not only interfere with cooperative federalism programs and inter-
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national agreements; it would also obstruct initiatives the States them-
selves have taken to promote the very energy production and marketing
targeted in this case.
For example, the California State Oil and Gas Supervisor is
charged with “encourag[ing] the wise development of oil and gas re-
sources” and “permit[ing] the owners or operators of the wells to utilize
all methods and practices known to the oil industry for the purpose of
increasing the ultimate recovery of underground hydrocarbons[.]” Cal.
Pub. Res. Code §§ 3004, 3106(b), (d). Texas encourages similar initiatives.
See Tex. Nat. Res. Code § 131.002(1) (declaring that “the extraction of
minerals by surface mining operations is a basic and essential activity
making an important contribution to the economic well-being of the state
and nation”); see also Tex. Nat. Res. Code §§ 34.052, 34.055.
The federal government is no different: Numerous federal statutes
expressly affirm the government’s intention “to promote the efficient ex-
ploration, production, storage, supply, marketing, pricing, and regulation
of energy resources, including fossil fuels.” Consolidated Appropriations
Act, 2016, codified at 42 U.S.C. § 6212a(b).
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The States’ and the federal government’s promotion of fossil fuels
not only demonstrates the inherently political nature of this issue, but
also suggests that States and the federal government could themselves
be subject to liability if the Cities’ claims are permitted to proceed. In-
deed, in view not only of the Cities’ expansive theories of liability, but
also their claim to sue as relators on behalf of the State, this case might
as well be styled California v. California.
***
Global climate change has been the subject of state, regional, na-
tional, and international debates for decades. The Cities now seek to have
courts resolve these disputes once and for all. This Court should not allow
them to do so. The political question doctrine exists for precisely such
cases as this: The Cities’ claims “lack of judicially discoverable . . . stand-
ards,” inevitably demand “an initial policy determination of a kind clearly
for nonjudicial discretion,” require trampling over the decisions of “coor-
dinate branches of government,” and invite incoherent and “multifarious
pronouncements by various departments.” Baker v. Carr, 369 U.S. 186,
217 (1962). Courts should not be in the business of establishing emissions
policy (or, as is more likely, multiple conflicting emissions policies) on a
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piecemeal, ad hoc, case-by-case basis under the aegis of common law. This
Court should grant the petition and affirm the district court’s order dis-
missing these claims.
CONCLUSION
For the foregoing reasons, the Court should grant the petition for
rehearing en banc and affirm the district court’s judgment.
Respectfully submitted,
/s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
Office of the Attorney General
302 W. Washington Street
Indianapolis, IN 46204
(317) 924-3005
*Counsel of Record
CURTIS T. HILL, JR.
Attorney General of Indiana
THOMAS M. FISHER*
Solicitor General
KIAN J. HUDSON
Deputy Solicitor General
JULIA C. PAYNE
Deputy Attorneys General
Counsel for Amici States
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ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
State of Alabama
KEVIN G. CLARKSON
Attorney General
State of Alaska
LESLIE RUTLEDGE
Attorney General
State of Arkansas
CHRISTOPHER M. CARR
Attorney General
State of Georgia
DEREK SCHMIDT
Attorney General
State of Kansas
JEFF LANDRY
Attorney General
State of Louisiana
LYNN FITCH
Attorney General
State of Mississippi
ERIC SCHMITT
Attorney General
State of Missouri
TIMOTHY C. FOX
Attorney General
State of Montana
DOUG PETERSON
Attorney General
State of Nebraska
WAYNE STENEHJEM
Attorney General
State of North Dakota
DAVE YOST
Attorney General
State of Ohio
MIKE HUNTER
Attorney General
State of Oklahoma
ALAN WILSON
Attorney General
State of South Carolina
JASON R. RAVNSBORG
Attorney General
State of South Dakota
KEN PAXTON
Attorney General
State of Texas
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SEAN REYES
Attorney General
State of Utah
PATRICK MORRISEY
Attorney General
State of West Virginia
BRIDGET HILL
Attorney General
State of Wyoming
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CERTIFICATE OF COMPLIANCE
This document complies with the word limit of Circuit Rule 29-
2(c)(2) because, excluding the parts of the document exempted by Fed. R.
App. P. 32(f), this document contains 4,087 words.
Dated: July 20, 2020
/s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
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CERTIFICATE OF SERVICE
I certify that on July 20, 2020, I caused service of the foregoing brief
to be made by electronic filing with the Clerk of the Court using the
CM/ECF system, which will send a Notice of Electronic Filing to all par-
ties with an email address of record, who have appeared and consent to
electronic service in this action.
Dated: July 20, 2020
/s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
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